Justice Dept. Says CIA Destroyed 92 Torture Tapes

The CIA destroyed 92 videotapes – far more than previously known – to prevent disclosure of evidence revealing how the agency’s interrogators subjected “war on terror” detainees to waterboarding and other brutal methods, according to court documents filed by the Justice Department.

“The CIA can now identify the number of videotapes that were destroyed,” said a letter written by Acting U.S. Attorney Lev Dassin and filed in federal court in New York. “Ninety-two videotapes were destroyed.”

Previously, the CIA had disclosed that it had destroyed two videotapes and one audiotape of harsh interrogations of detainees. The tape destruction has been the subject of a year-long criminal investigation by John Durham, the acting U.S. Attorney for the Eastern District of Virginia who was appointed special prosecutor last year by Attorney General Michael Mukasey.

In Monday’s filing, Dassin noted that a stay of a contempt motion filed by the ACLU seeking release of the tapes was allowed to expire on Feb. 28 without a request for a continuation – signaling that Durham’s investigation is now complete.

In January, Durham had indicated in a court filing that he expected to wrap up his probe by the end of February. The CIA has asked the court to give the agency until Friday to produce a list of all destroyed records, any memos relating to reconstruction of those records, and identification of witnesses who may have watched the videotapes before they were destroyed.

Dassin’s letter said some information sought by the ACLU may be classified or “protected from disclosure, such as the names of the CIA employees who viewed the videotapes.”

Dassin said the CIA “intends to produce all of the information requested to the court and to produce as much information as possible on the public record to the plaintiffs.”

Amrit Singh, a staff attorney with the ACLU, said the latest disclosure “provides further evidence for holding the CIA in contempt of court.”

“The large number of videotapes destroyed confirms that the agency engaged in a systemic attempt to hide evidence of its illegal interrogations and to evade the court’s order.” Singh said. “Our contempt motion has been pending in court for over a year now – it is time to hold the CIA accountable for its flagrant disregard for the rule of law.”

The videotaped interrogations, which were also withheld from the 9/11 Commission, were destroyed in November 2005 after The Washington Post published a story exposing the CIA’s use of so-called “black site” prisons overseas to interrogate terror suspects with techniques that were not legal on U.S. soil.

According to a Dec. 19, 2007 story published in the New York Times, at least four “top White House lawyers took part in discussions with the Central Intelligence Agency between 2003 and 2005 about whether to destroy videotapes showing the secret interrogations of two operatives from Al Qaeda, according to current and former administration and intelligence officials.

“Those who took part, the officials said, included Alberto R. Gonzales, who served as White House counsel until early 2005; David S. Addington, who was the counsel to Vice President Dick Cheney and is now his chief of staff; John B. Bellinger III, who until January 2005 was the senior lawyer at the National Security Council; and Harriet E. Miers, who succeeded Mr. Gonzales as White House counsel,” The Times reported.

Tapes Destroyed After CIA Watchdog Inquiry

As The Public Recordpreviously reported, the videotaped interrogations, which were also withheld from the 9/11 Commission, were destroyed in November 2005, after The Washington Post published a story that first exposed the CIA’s use of so-called “black site” prisons overseas to interrogate terror suspects, using techniques that were not legal on US soil. The Post’s story discussed the harsh methods the CIA used when questioning detainees. However, it’s unknown whether the Post’s story directly led to the destruction of the videotapes.

The destruction of the tapes also followed a still classified report by the CIA’s inspector general issued in the spring of 2004 that concluded the interrogation methods used on the prisoners “appeared to constitute cruel, inhumane and degrading treatment, as defined by the International Convention Against Torture.”

“In his report, Mr. Helgerson also raised concern about whether the use of the techniques could expose agency officers to legal liability,” according to a November 9, 2005, story in The New York Times, published around the same month the tapes were destroyed. “They said the report expressed skepticism about the Bush administration view that any ban on cruel, inhumane and degrading treatment under the treaty does not apply to CIA interrogations because they take place overseas on people who are not citizens of the United States.”

In a little known Jan. 10, 2008 declaration in response to the ACLU’s contempt motion, the CIA provided insight into the Helgerson’s report and revealed that he viewed the torture tapes.

“In January 2003, [Office of Inspector General] OIG initiated a special review of the CIA terrorist detention and interrogation program. This review was intended to evaluate CIA detention and interrogation activities, and was not initiated in response to an allegation of wrongdoing,” the declaration says. “During the course of the special review, OIG was notified of the existence of videotapes of the interrogations of detainees. OIG arranged with the NCS to review the videotapes at the overseas location where they were stored.

“OIG reviewed the videotapes at an overseas covert NCS facility in May 2003. After reviewing the videotapes, OIG did not take custody of the videotapes and they remained in the custody of NCS. Nor did OIG make or retain a copy of the videotapes for its files. At the conclusion of the special review in May 2004, OIG notified DOJ and other relevant oversight authorities of the review’s findings.”

Conyers Recommends Expanded Probe

House Judiciary Committee Chairman John Conyers in January proposed expanding the scope of the investigation into the destruction of the torture tapes to include the Bush administration’s interrogation.

In a report the Michigan Democrat published in January, he said he urged Attorney General Eric Holder to “appoint a Special Counsel or expand the scope of the present investigation into CIA tape destruction to determine whether there were criminal violations committed pursuant to Bush administration policies that were undertaken under unreviewable war powers, including enhanced interrogation, extraordinary rendition, and warrantless domestic surveillance.”

Last year, Bush’s Attorney General Michael Mukasey appointed U.S. Attorney John Durham as special counsel to investigate whether the destruction of CIA videotapes that depicted interrogators waterboarding alleged terrorist detainees violated any laws. Durham was not given the authority to probe whether the interrogation techniques themselves violated anti-torture laws.

“At present, the Attorney General has agreed only to appoint a special U.S. Attorney to determine whether the destruction of videotapes depicting the waterboarding of a detainee constituted violations of federal law,” Conyers’s report said.

“Despite requests from Congress, that prosecutor has not been asked to investigate whether the underlying conduct being depicted – the waterboarding itself or other harsh interrogation techniques used by the military or the CIA – violated the law. … Appointment of a special counsel would be in the public interest (e.g., it would help dispel a cloud of doubt over our law enforcement system).”

It is believed unlikely that the Justice Department will act on Conyers’s recommendation.

Chertoff Advised CIA

One detainee whose interrogation was videotaped is Abu Zubaydah, an al-Qaeda lieutenant captured in Pakistan on March 28, 2002, and whisked to a secret prison site in Thailand for interrogation, according to published reports.

Former Homeland Security Secretary Michael Chertoff advised the CIA between 2002 and 2003 that its agents had the legal authority to use techniques that included waterboarding on Zubaydah, according to a little-known report published in January 2005.

George W. Bush and Vice President Dick Cheney have both admitted they authorized CIA interrogators to use waterboarding on Zubaydah.

Chertoff was head of the Justice Department’s Criminal Division when CIA officials inquired whether its agents could be charged with violating the federal anti-torture statute for employing interrogation methods such as waterboarding.

“The CIA was seeking to determine the legal limits of interrogation practices for use in cases like that of Abu Zubaydah, the Qaeda lieutenant who was captured in March 2002,” says a January 29, 2005, New York Times story. That story quoted unnamed sources who told the newspaper that “Chertoff was directly involved in these discussions, in effect evaluating the legality of techniques proposed by the CIA by advising the agency whether its employees could go ahead with proposed interrogation methods without fear of prosecution.”

During his Senate confirmation hearing in February 2005, Chertoff maintained that he provided the CIA broad guidance in response to its questions about interrogation methods and never specifically addressed the legality regarding waterboarding or other techniques.

However, Chertoff told former CIA General Counsel Scott Muller and his deputy, John Rizzo, both of who are believed to have been questioned as part of Durham’s investigation, that an Aug. 1, 2002 legal opinion put the CIA on solid legal ground and that its agents could waterboard a prisoner without fear of prosecution. Former Justice Department attorney John Yoo wrote the memo.

Yoo’s Memo Drafted After Detainee Tortured

Yoo’s memo, said that Congress “may no more regulate the President’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.”

During the early stages of his interrogation, Zubaydah was somewhat cooperative. Later he became tight-lipped when questioned about alleged terrorist plots against the United States and the whereabouts of other high-level associates of al-Qaeda.

In July 2002, a meeting was convened at the White House, where former White House counsel Alberto Gonzales, Justice Department attorney John Yoo, Vice President Dick Cheney, Cheney’s attorney David Addington, and unknown CIA officials discussed whether the CIA could interrogate Zubaydah more aggressively in order to get him to respond to questions.

It was at this July 2002 meeting where Yoo, Gonzales and Addington gave the CIA the green light to use a wide variety of techniques, including waterboarding, on Zubaydah and other detainees at several secret prisons to “break” them and force them to cooperate with interrogators, according to an account published in Newsweek in late December 2003.

Less than a month after the meeting, on Aug. 1, 2002, Yoo drafted a memo to Gonzales that was signed by Jay Bybee, the assistant attorney general at the time. That memo declared that George W. Bush had the legal authority to allow CIA interrogators to employ harsh tactics to extract information from detainees. Human rights organizations and Democratic and Republican lawmakers have characterized the methods outlined in the Yoo memo as torture.

The Justice Department’s Office of Professional Responsibility recently completed a report that is highly critical of Yoo’s work on the torture memo. The still classified report said Yoo acted as an advocate for Bush administration policy rather than an independent, unbiased attorney.

In the book The One Percent Doctrine, author Ron Suskind said Zubaydah was not the “high-value detainee” the CIA had claimed. Rather, Zubaydah was a minor player in the al-Qaeda organization, handling travel for associates and their families, Suskind wrote.

However, “Bush was fixated on how to get Zubaydah to tell us the truth,” Suskind wrote. Bush asked one CIA briefer, “Do some of these harsh methods really work?”

Zubaydah was strapped to a waterboard and, fearing imminent death, he spoke about a wide range of plots against a number of U.S. targets, such as shopping malls, the Brooklyn Bridge and the Statue of Liberty. Yet, Suskind wrote, the information Zubaydah provided under duress was not credible.

According to Suskind, Zubaydah’s captors soon discovered that their prisoner was mentally ill and knew nothing about terrorist operations or impending plots. That realization was “echoed at the top of CIA and was, of course, briefed to the President and Vice President,” Suskind wrote.

Still, in public statements, President Bush portrayed Zubaydah as “one of the top operatives plotting and planning death and destruction on the United States” and added: “So, the CIA used an alternative set of procedures” to get Zubaydah to talk.

The President did not want to “lose face” because he had stated his importance publicly, Suskind wrote.

Last year, Mukasey appointed U.S. Attorney Durham as special counsel to investigate whether the destruction of the CIA videotapes violated any laws, but did not give Durham the authority to probe whether the interrogation techniques themselves violated anti-torture laws.

In December 2008, Bush and Cheney both admitted in exit interviews that they authorized the waterboarding of Zubaydah and two other detainees.

House Judiciary Committee Chairman John Conyers in January proposed expanding the scope of Durham’s investigation to include a broader review of the Bush administration’s interrogation policies.

Conyers said he urged Attorney General Eric Holder to “appoint a Special Counsel or expand the scope of the present investigation into CIA tape destruction to determine whether there were criminal violations committed pursuant to Bush administration policies that were undertaken under unreviewable war powers, including enhanced interrogation, extraordinary rendition, and warrantless domestic surveillance.”

The Senate Intelligence Committee, chaired by Democrat Dianne Feinstein, will soon conduct a secret investigation into the CIA’s interrogation program to determine whether the methods used against detainees worked, according to published reports.